IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 OP (FC).No. 902 of 2010(R) -------------------------------------- OP.NO. 699/2005 of FAMILY COURT,TRIVANDRUM .................... PETITIONER -------------------- MARY, D/O.FRANCIS, AGED 58 YEARS, KANETTU HOUSE, VYASA NAGAR, HOUSE NO.61, PARUTHIPPARA, MUTTADA, THIRUVANANTHAPURAM. BY ADVS. SRI.SANTHOSH G. PRABHU SRI.S.KANNAN SMT.S.RAKHEE SMT.N.U.DEEPA SMT.K.S.SANGEETHA RESPONDENT(S): --------------------------- M.T.THOMAS, S/O.THOMAS, AGED 60 YEARS, MAKKOLIL HOUSE, KOOTHEAPALLY, KARUKACHAL VILLAGE, CHANGANASSERY, KOTTAYAM.PIN-686 001 BY ADV. SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 08/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(FC)NO.902/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE I.A.NO.1874 OF 2010 IN O.P.NO.699 OF 2005 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM. P2 COPY OF THE ORDER DATED 15/10/2010 OF THE HON'BLE FAMILY COURT THIRUVANANTHAPURAM IN I.A.NO.1874 OF 2010. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts THOTTATHIL B. RADHAKRISHNAN & K.SURENDRA MOHAN, JJ. * * * * * * * * * * * * * * * * * * * * * * * * O.P.(F.C) No.902 of 2010 --------------------------- Dated this the 8th day of July 2011 J U D G M E N T Thottathil B.Radhakrishnan, J. The petitioner is the wife of the respondent. She filed an O.P before the Family Court for recovery and realisation of gold ornaments, money and other consequential benefits. This is a claim relatable to the matrimony between the parties. 2. Among their three sons, M.T.Thomas, a Government servant died on 28/07/2003. According to the petitioner, his death left certain financial liabilities to the Secretariate Staff Co-operative Society and Mundela Co-operative Society and the petitioner had cleared those liabilities. She alleges that the husband/the respondent appropriated the terminal benefits due to the estate of the son M.T.Thomas and therefore the respondent is liable to account for that amount also in the suit. O.P.(F.C) .No.902/2010 2 3. Remember, petitioner's son Thomas died on 28/07/2003. The original proceedings before the Family Court was initiated only in 2005. There was no pleading in relation to the so called adjustment or set off. We hasten to add that we do not proceed to consider whether the question of adjustment or accounting regarding the terminal benefits referable to the estate of a deceased son could be subjected to the litigation in connection with the matrimonial property. Yet, we are inclined to think that the court below was justified in taking the view that the application for amendment filed in 2010 was highly belated. We, however, do not wish to express anything finally on the merits of the claim sought to be incorporated by amendment since the couple, by now an elderly one, could be motivated to settle the litigation than suffer its pendency even in appellate courts. Therefore, without prejudice to the right of the petitioner to agitate the issue of amendment if and when necessary in any appeal, if one arises from the final order that may be passed by the Family Court in O.P.No.699/2005, we uphold the impugned order to the extent it holds that the application for amendment was belated. O.P.(F.C) .No.902/2010 3 Resultantly and subject to that, we dismiss this original petition. (THOTTATHIL B. RADHAKRISHNAN, JUDGE) (K.SURENDRA MOHAN, JUDGE) jsr // True Copy// PA to Judge