IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 22ND JANUARY 2010 / 2ND MAGHA 1931 Mat.Appeal.No. 591 of 2009(D) ----------------------------------------- AGAINST THE ORDER DATED 30/05/2009 IN IA 2696/2008 IN OP.1655/2007 of FAMILY COURT,ERNAKULAM .................... APPELLANT (S) /RESPONDENTS 1 & 2/RESPONDENTS 1 & 2: ------------------------------------------------------------------------------------- 1. N.S.JAYAKUMAR, AGED 41 YEARS,S/O.LATE SREEDHARAN, 'NANDANAM',C.C.NO.32/1310(C-1), KALAVATH ROAD,PALARIVATTOM,KOCHI-25. 2. PADMAVATHY, AGED 83 YEARS,W/O.LATE SREEDHARAN, 'NANDANAM',C.C.NO.XXXII/1310(C-1), KALAVATH ROAD,PALARIVATTOM,KOCHI-25. BY ADV. SRI.N.HARIDAS SRI.P.N.SASIDHARAN SRI.C.A.ANUPAMAN SMT.P.G.MANJU RESPONDENT(S): PETITIONER & 3RD RESPONDENT//PETITIONER & 3RD RESPONDENT: --------------------------------------------------------------------------------------------------- 1. LAKSHMI, AGED 31 YEARS,D/O.E.K.BOSE, ERAMBATH HOUSE,KOTTAPPADY, KOTHAMANGALAM,ERNAKULAM. 2. MAYA EKANATHAN, AGED ABOUT 49 YEARS,W/O.EKANATHAN, 'MIDHUNAM',KALAVATH ROAD, PALARIVATTOM,KOCHI-25. ADV. SMT.K.GIRIJA FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN COME UP FOR ADMISSION ON 22/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & P.Q.BARKATH ALI, JJ. ------------------------------------------------------ Mat.Appeal No.591 of 2009-D ---------------------------------------------- Dated, this the 22nd day of January, 2010 J U D G M E N T K.M.Joseph, J. Appellants are respondents 1 and 2 in I.A.No.2696 of 2008 in O.P.No.1655/2007. I.A.No.2696/2008 is an application filed by the Ist respondent who is the petitioner in O.P.No.1655/2007 on the file of the Family Court, Ernakulam. The 2nd appellant is the mother of the Ist appellant. The 2nd respondent is the eldest sister of the Ist appellant. I.A.No.2696/2008 is filed by the Ist respondent under Order XII Rule 9 of the Code of Civil Procedure inter alia claiming return of 140 sovereigns to her or in the alternative to pass a judgment and decree allowing the petitioner to recover 140 sovereigns of gold ornaments or its proportionate value of Rs.13 lakhs. The Original petition is filed for recovery of money, gold ornaments etc. The prayer is to recover 210 sovereigns of gold ornaments. The case of the Ist respondent in the I.A. is that the respondents have admitted that 140 sovereigns of gold ornaments are in their M.A.591/2009 -2- custody and possession. Alleging that the appellants are not entitled to retain the gold ornaments admittedly belonging to the Ist respondent, relief is sought in the I.A. 2. Appellants filed counter affidavit inter alia contending as follows:--The application is not maintainable. The application is at the instigation of the Ist respondent's parents and her brother. They have referred to the hardships, cruelties, financial loss, loss of reputation to their family and the damage sustained on account of the unreasonable and hostile attitude of the Ist respondent's father and brother. The Family Court found that the Ist appellant has admitted that the appellants are in possession of 140 sovereigns of gold ornaments belonging to the Ist respondent and they have no legal right to retain possession of the same. Accordingly, the application is allowed and the appellants were directed to hand over the gold ornaments weighing 140 sovereigns to the Ist respondent. 3. We heard the learned counsel for the appellants Sri.N.Haridas and also the learned counsel on behalf of the Ist respondent Smt.K.Girija. We also interacted with the parties. In so far as it is admitted that the gold M.A.591/2009 -3- ornaments weighing 140 sovereigns belong to the Ist respondent, we do not think that there would be any justification for us to interfere with the order of the Family Court for return of the gold ornaments admittedly belonging to the Ist respondent. The learned counsel for the appellants would point out that the nature of admission may be seen as he would submit that it was made with some condition. In the facts of this case we do not think that the appellants should be permitted to wriggle out of the substance of the admission that 140 sovereigns of gold ornaments belonging to the Ist respondent is with them and we see no justification for allowing them to retain 140 sovereigns of gold ornaments belonging to the Ist respondent. Accordingly, the Matrimonial Appeal fails, and it is dismissed. (K.M.JOSEPH) JUDGE. (P.Q.BARKATH ALI) JUDGE. MS