Abdul Rahiman v. Anwar K.A

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945 RSA NO. 505 OF 2021 ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 8.3.2021 IN A.S.NO.4/2017 OF DISTRICT COURT, KASARAGOD AGAINST THE JUDGMENT AND DECREE DATED 14.11.2016 IN O.S.NO.386/2015 OF MUNSIFF COURT, KASARAGOD ``` ## **`APPELLANT/APPELLANT/DEFENDANT:`** ``` ABDUL RAHIMAN AGED 36 YEARS, S/O SAINUDHEEN, RESIDING NEAR GVHSS, MOGRAL VILLAGE & POST, KASARGOD DISTRICT PIN-671 321 BY ADVS. SURESH KUMAR KODOTH K.P.ANTONY BINU ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF:`** ``` ANWAR K.A AGED 66 YEARS, S/O ABDUL RAHIMAN, RESIDING AT VALACHAL HOUSE, MOGRAL VILLAGE & POST, KASARGOD DISTRICT, PIN- 671321 ``` ``` BY ADVS. P.B.KRISHNAN P.B.SUBRAMANYAN SABU GEORGE B.ANUSREE MANU VYASAN PETER ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09.01.2024, THE COURT ON 15.1.2024, DELIVERED THE FOLLOWING: ``` ``` RSA NO. 505 OF 2021 2 ``` ## **JUDGMENT** Dated this the 15[th] day of January, 2024 This Regular Second Appeal originally filed along with C.M.C.P.No.20/2021, arises out of decree and judgment in A.S.No.4/2017 on the files of the District Court, Kasaragod, whereby, the learned District Judge confirmed the decree and judgment in O.S.No.386/2015, dated 14.11.2016 on the files of the Munsiff Court, Kasaragod. Defendant is the appellant herein and plaintiff is the respondent herein. 2. As per order, dated 3.1.2024, C.M.C.P.No.20/2021 allowed and the appellant was permitted to proceed this appeal, as an indigent person, though he has immovable property. 3. Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondent. 4. I shall refer the parties in this appeal as ‘plaintiff’ and ‘defendant’, for convenience. 5. The plaintiff, who is the father of the wife of the defendant, instituted the suit, claiming 45 sovereigns of gold ``` RSA NO. 505 OF 2021 3 ``` ornaments alleged to be given by him to his daughter at the time of marriage between the daughter and the defendant. The case of the plaintiff before the trial court was that the marriage between the defendant and the daughter of the plaintiff was solemnized on 30.5.2011 and thereafter, the daughter of the plaintiff committed suicide on 25.5.2014. Since the defendant swallowed 45 sovereigns of gold ornaments, entrusted by the plaintiff to his daughter at the time of marriage, during the period of their joint residence, on demand, the defendant executed an agreement on 28.6.2014, agreeing to return 45 sovereigns of gold ornaments taken by the defendant, in three installments. It was agreed to return 10 sovereigns of gold ornaments within 2 months from the date of the agreement, 15 sovereigns of gold ornaments within 6 months from the date of the agreement and the remaining 20 sovereigns of gold ornaments within one year from the date of agreement. Since the defendant failed to perform the contractual obligations, the present suit was filed after issuing legal notice of demand. 6. Defendant entered appearance and filed written statement. The execution of the agreement was denied by the ``` RSA NO. 505 OF 2021 4 ``` defendant. The consideration set forth in the agreement also was denied. Entrustment of 45 sovereigns of gold ornaments to the daughter of the plaintiff and its misappropriation by the defendant also were denied. Question regarding jurisdiction of the civil court to entertain the matter also was raised. 7. The trial court raised necessary issues including one of jurisdiction and finally found on evidence confined to that of PW1 to PW3 and Exts.A1 to A4 on the side of the plaintiff as well as DW1 on the side of the defendant that, since the suit is one based on an agreement, civil court has jurisdiction. On finding that execution of Ext.A1 stood proved, the learned Munsiff decreed the suit as under: _In the result, this suit is decreed with costs as follows:_ _1. The defendant is directed to return 45 sovereigns of gold ornaments to the plaintiff on or before 15.1.2017._ _2. In case, if the defendant fails to return the gold ornaments within the time prescribed, he shall pay an amount of Rs.9,00,000/- as the value of gold ornaments with future interest at the rate of 6% p.a from the date of suit till the date of realisation of the amount._ ``` RSA NO. 505 OF 2021 5 ``` _3. If the amount is not been paid on or before 15-012017, the plaintiff is entitled to get the decree executed through due process of law._ _4. Defendant to do pay the costs of this suit._ 8. Although appeal filed, challenging the verdict of the Munsiff Court before the District Court, Kasaragod. The learned District Judge re-appreciated the evidence including the question of jurisdiction and concurred the finding of the trial court. 9. The learned counsel for the defendant reiterated question of jurisdiction and also disputed the genuineness of Ext.A1 by reiterating the contentions raised before the trial court. According to the learned counsel, the civil court has no jurisdiction to entertain suit of this nature in view of the bar under Section 7(1)(a) of the Family Courts Act, 1984, read with _Explanation (c)_ . 10. Dispelling this argument, the learned counsel for the plaintiff submitted that, in the case at hand, gold ornaments given by the plaintiff to his daughter at the time of marriage, which was agreed to be returned by the defendant by executing an ``` RSA NO. 505 OF 2021 6 ``` agreement, is the subject matter of the lis and therefore, civil court has jurisdiction to entertain the same. The learned counsel also read out relevant evidence of PW1, PW2 and DW1, to hold that Ext.A1 was executed by the defendant in favour of the plaintiff. He argued further that the first witness in the agreement is none other than brother of the defendant. But the defendant, who disputed the agreement even not examined his brother to upset the agreement. According to the learned counsel for the plaintiff, PW2, categorically supported the execution of Ext.A1 supported by the evidence given by PW1, as well. He also submitted that, going by the evidence given by DW1 also, the execution of the agreement stands proved and therefore, the trial court as well as the appellate court rightly granted decree in favour of the plaintiff and the said finding does not require any interference at the hands of this Court. 11. Having considered the rival submissions, this appeal stands admitted and the following substantial questions of law raised for decision: _1) Whether the finding of the trial court and the appellate court that the suit is not barred under Section 7(1) of the Family_ ``` RSA NO. 505 OF 2021 7 ``` _Courts Act, 1984, is justifiable?_ _2) Whether the courts below went wrong in holding that the plaintiff proved Ext.A1 agreement so as to get the verdicts in his favour?_ 12. Section 7 of the Family Courts Act, 1984, deals with jurisdiction and it has been provided therein as under: _**7. Jurisdiction.** —(1) Subject to the other provisions of this Act, a Family Court shall—_ _(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and_ _(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends._ _Explanation.—The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:—_ _(a) a suit or proceeding between the parties to a marriage for a decree of nullity_ ``` RSA NO. 505 OF 2021 8 ``` _of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;_ _(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;_ _(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;_ _(d) a suit or proceeding for an order or injunction in circumstance arising out of a marital relationship;_ _(e) a suit or proceeding for a declaration as to the legitimacy of any person;_ _(f) a suit or proceeding for maintenance;_ _(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor._ _(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise—_ _(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and_ ``` RSA NO. 505 OF 2021 9 ``` _(b) such other jurisdiction as may be conferred on it by any other enactment._ A reading of Section 7 of the Family Courts Act, 1984, would go to show that a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them or a suit or proceeding for an order or injunction in circumstance arising out of a marital relationship (c and d) is within the jurisdiction of the Family Court. This legal position is not in dispute and the learned counsel for the defendant placed judgments of this Court in **Leby Issac** v. **Leena M.Ninan and Others** reported in **[2005 KHC 960]** : **[2005 (3) KLT 665]** : **[2005 (2) KLJ 652]** , **Suprabha** v. **Sivaraman** reported in **[2006 KHC 228] : [2006 (1) KLT 712] : [2006 (1) KLJ 414], Krishna Moorthy** v. **Soumya Krishnan and Another** reported in **[2015 (5) KHC 365] : [2015 (4) KLT 471] : [2015 (4) KLJ 477], Janaki Amma and Others** v. **Renuka Sadanandan and Others** reported in **[2016 (1) KHC 266] : [2016 (1) KLJ 346] : [2016 (1) KLT 563]** , in support of this contention. 13. In the case at hand, the suit document is Ext.A1, an agreement alleged to be executed by the defendant in favour of ``` RSA NO. 505 OF 2021 10 ``` the plaintiff. So, Ext.A1 agreement is not in between the parties to the marriage and an agreement in between the defendant in favour of his wife’s father. If so, it could not be held that the dispute adjudicated by the civil court in the case at hand is one in between the parties to the marriage and the present suit is one arose out of Ext.A1 agreement. Therefore, the concurrent finding rendered by the trial court as well as the appellate court, as regards the question of jurisdiction, does not require any interference. 14. Coming to the second question of law, in this case, the evidence of PW1 and PW2 if read together, it could be gathered that both of them supported the execution of Ext.A1. During cross examination of PW2, a suggestion was made at the instance of the learned counsel for the defendant to the effect that Ext.A1 got executed by PW1 by threatening the defendant to get return of the gold ornaments. But, in the written statement, no such specific contention seen raised, though the execution of Ext.A1 is disputed. Thus, it appears that in the written statement filed by the defendant, the contention raised by the defendant is that, he did not execute Ext.A1. But, during cross examination, suggestion ``` RSA NO. 505 OF 2021 11 ``` of the learned counsel for the defendant was that, Ext.A1 got executed on threat for the purpose of return of gold ornaments. Although the defendant put up a case that Ext.A1 was executed under threat, he did not take any steps to prove the contention. The suggestion made during cross examination of PW2 would show admission of Ext.A1 by the defendant, but on threat. In fact, nothing substantiated to hold that Ext.A1 was executed under threat. Insofar as execution of Ext.A1 is concerned, trial court as well as the appellate court rightly appreciated and re-appreciated the evidence and found that plaintiff successfully proved the execution of Ext.A1. Thus, the trial court rightly granted decree in favour of the plaintiff and the appellate court rightly confirmed the same. Therefore, the decree and judgment under challenge, do not require any interference at the hands of this Court. In the result, this second appeal fails and is accordingly dismissed with cost of the plaintiff. All interlocutory applications pending in this second appeal, stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court, forthwith and also forward a copy of the ``` RSA NO. 505 OF 2021 12 ``` decree and judgment to the District Collector, Kasaragod for realisation of the court fee payable, since the appellant/defendant was permitted to institute this second appeal as an indigent person. Sd/- **A. BADHARUDEEN JUDGE** Bb