Anitha D.S & Pranav A.S v. P. Rajeswari Thankachy

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 13[TH] DAY OF JANUARY 2022 / 23RD POUSHA, 1943 OP(C) NO. 2210 OF 2021** **AGAINST THE ORDER/JUDGMENT IN O.S.1001/2019 OF ADDITIONAL MUNSIFF-II COURT, TRIVANDRUM** ## **PETITIONERS:DEFENDANTS 1& 2** 1 ANITHA D.S, AGED 44 YEARS, W/O.LATE P.SIVAPRASAD, RESIDING AT PRANAVAM, TC 49/998(1), CHIRAMUKKU, MANACAUD P.O, THIRUVANANTHAPURAM-695 009. 2 PRANAV.A.S, AGED 18 YEARS S/O.LATE P.SIVAPRASAD, RESIDING AT PRANAVAM, TC 49/998(1), CHIRAMUKKU, MANACAUD P.O, THIRUVANANTHAPURAM-695 009. BY ADVS. K.SANEESH KUMAR V.B.SANTHINI ## **RESPONDENT:** P.RAJESWARI THANKACHY, AGED 71 YEARS W/O.LATE K.PARAMESWARAN THAMPI, RESIDING AT TC 49/998, PRASAD BHAVAN, CHIRAMUKKU, ATTUKAL, MANACAUD P.O, THIRUVANANTHAPURAM-695 009. BY ADVS. T.MADHU C.R.SARADAMANI SHAHID AZEEZ RENJISH S. MENON THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06.01.2022, THE COURT ON 13.01.2022 DELIVERED THE FOLLOWING: O.P(c).No.2210/2021 2 **==> picture [354 x 38] intentionally omitted <==** ## **“CR”** ## _**A. BADHARUDEEN, J.**_ ================================ _O.P(C).No.2210 of 2021_ ================================ _Dated this the 13[th] day of January, 2022_ ## _**J U D G M E N T**_ This Original Petition (Civil) has been filed under Article 227 of the Constitution of India. The order in O.S.No.1001/2019 dated 05.11.2021 on the file of the Additional Munsiff-II, Thiruvananthapuram, produced as Ext.P6 herein, is under challenge in this Original Petition. 2. Heard the learned counsel for the petitioners as well as the respondents. 3. In this matter, as per Ext.P5 judgment of this Court in O.P(C).No.1464/2020, the court below was directed to expedite the disposal of the Suit when some other orders were put under challenge in the above O.P(C). As per the direction in Ext.P5, the O.P(c).No.2210/2021 3 Suit ought to have been decided before close for Christmas holidays during 2021. However, a preliminary issue was heard by the learned Munsiff as to maintainability of the Suit. According to the defendants, the Suit is not maintainable before the Munsiff Court since the subject matter of the Suit is one clearly covered under Section 7(1)(d) of the Family Courts Act, 1984. Though the contention was raised based on the decision reported in [2005(3) KLT 665 (DB)], _**Leby Issac v. Leena M.Ninan**_ , the learned Munsiff found that the Munsiff Court has jurisdiction to decide the matter. It has been observed by the learned Munsiff that the main issue to be decided in this case is the partible nature of the property and the genuineness of the Will propounded by the defendants. 4. The learned counsel for the petitioners reiterated the contentions put before the trial court to substantiate that the plaintiff herein is none other than the mother-in-law of the 1st defendant and, therefore, the Suit is one covered under Section O.P(c).No.2210/2021 4 7(1) (d) of the Family Courts Act. In support of this contention, decision reported in [2015(5) KHC 365], _**Krishna Moorthy v. Soumya Krishnan & anr.**_ and [2016 (1) KHC 266], _**Janaki Amma& Ors. v. Renuka Sadanandan & Ors.**_ have been highlighted. 5. Opposing this contention, the learned counsel for the plaintiff/1st respondent herein would contend that this is a simple Suit for partition consequent on the death of the son of plaintiff and this Suit cannot be considered as one covered under Section explanation (d) to Section 7(1) of the Family Courts Act. In the decision reported in _**Janaki Amma**_ 's case (supra), a Division Bench of this Court considered a Suit filed by the mother-in-law to declare title over the property left by her son as her own, on which a sale deed was executed in favour of his wife. In that case, the Division Bench observed that the said case would fall under explanation (d) to Section 7(1) of of the Family Courts Act. In the decision in _**Krishna Moorthi**_ 's case ( _supra_ ), when O.P(c).No.2210/2021 5 daughter instituted a Suit for recovery of an amount of Rs.40 lakh which the father had promised to pay for the marriage, the jurisdiction was held to be vested with the Family Court. Therein also it was held that the Suit in question and the cause of action agitated based on the right and obligations arose therein would clearly fall within explanation (d) to Section 7(1) of the Family Courts Act. In this connection, it is apposite to refer Section 7 as such for clarity. Section 7 of the Family Courts Act reads as follows: _“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 subsection are suits and proceedings of the following nature, namely:--_ _(a) a suit or proceeding between the parties to a marriage for a_ O.P(c).No.2210/2021 6 _decree of nullity 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_ - _circumstances 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 (b) such other jurisdiction as may be conferred on it by any other enactment.”_ 6. However, the learned counsel for the respondent placed decision reported in [2020 (5) KHC 629], _**Mini & Ors. v.**_ _**Sivaraman & anr.**_ and submitted that in order to entertain a petition by the Family Court, any circumstance arising out of a marital relationship should be there. In the said decision, the O.P(c).No.2210/2021 7 ## following are the observations: _“The main requirement is that such `circumstances' must have a direct bearing on marriage, since the marriage precedes, the existence or origin of a `marital relationship'. `Circumstances' arising out of a marital relationship are therefore, `occurrences or things which stand around or about, which attend upon, which closely precede or follow, which surround and accompany, which depend upon, or which support or qualify the principal event' of a marriage or marital relationship. The expression `in circumstances arising out of marital relationship' thus means not only those occurrences which transpired during marital life, but those also include such circumstances which led to the marriage, which developed thereafter, which took place during marital life, which resulted in breaking down of marriage and also those which `closely' followed as a consequence of all these. If the intention of Legislature was to take in only those occurrences which take place during a `marital relationship', there was no necessity to use the word `circumstances' in explanation (d) to S.7(1) of the Act. The same purpose could have been achieved if explanation (d) is worded without the term `circumstances' also. So, the inclusion of word `circumstances' in the relevant provision is quite significant and it must have been done to include all such circumstances surrounding, preceding and closely following a marital relationship i.e., the principal event of marriage and the eventualities surrounding the same”._ Thus the law emerges is that in all circumstances, surrounding, preceding and closely following a marital relationship starting from the principal event of marriage, the jurisdiction is vested O.P(c).No.2210/2021 8 with the Family Court. 7. Coming to the facts of this case, the mother-in-law of the 1st defendant in the Suit instituted Suit as plaintiff for partition of the property alleged to be left by her son, consequent on the death of his son. According to the mother-in- law/plaintiff, she is entitled to get 1/3 share in the plaint schedule items and defendants 1 and 2, the wife and her son, are entitled to get 1/3 share each. The cause of action stated in the Suit was obstruction made by the defendants from entering into A and B schedule items by denying co-ownership right of the mother-in-law. 8. According to the defendants, the husband of the 1st defendant executed a Will before S.R.O, Thiruvallom as deed No.III/40/2019 and thereby the entire right of the plaint schedule item had been transferred in favour of defendants 1 and 2. 9. Thus it appears that the genuineness of the Will is a question to be decided to find out whether the property is liable to be partitioned and the plaintiff is entitled to get 1/3 share. In such O.P(c).No.2210/2021 9 circumstances, I am of the view that the present Suit is for partition of the property after considering the genuineness of the Will. Going by the given facts of this case, I have no hesitation to hold that this is a Suit cannot be held as one comes within the definition of S.7(1)(d) of the Family Courts Act, treating the same as one for a Suit or proceeding for an order in circumstances arising out of a marital relationship. Thus I hold that this Suit for partition filed by the mother-in-law against daughter-in-law and her son is maintainable before a civil court and not before the Family Court, as property right consequent on the death of the son of the plaintiff is the direct question to be decided by the civil court in this case and the same is not covered under Section 7(1) (d) of the Family Courts Act. Thus the order impugned is perfectly in order. 10. In the above circumstances, I find no merit in the Original Petition and is dismissed accordingly. 11. Considering the fact that the trial of the Suit, which O.P(c).No.2210/2021 10 was directed to be completed before December, 2021 by this Court, has been stalled, the trial court is directed to expedite the trial of the case at the earliest, at any rate, before close of the court for summer vacation. Registry shall forward a copy of this judgment to the Additional Munsiff-II, Thiruvananthapuram for information and compliance, within 7 days. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ O.P(c).No.2210/2021 11 ## **APPENDIX OF O.P.(C) 2210/2021** PETITIONERS' EXHIBITS Exhibit P1 A TRUE COPY OF THE PLAINT IN OS.1001 OF 2019 DATED 29.06.2019 FILED BY THE RESPONDENT BEFORE THE ADDITIONAL MUNSIFF-II COURT, THIRUVANANTHAPURAM. Exhibit P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS DATED 22.09.2019. Exhibit P3 A TRUE COPY OF THE AMENDED PLAINT FILED BY THE RESPONDENT DATED 10.09.2021. Exhibit P4 A TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY THE PETITIONERS DATED 25.09.2021. Exhibit P5 A TRUE COPY OF THE JUDGMENT IN O.P(C) NO.1464/2020 DATED 02.08.2021 PASSED BY THIS HONOURABLE COURT. Exhibit P6 A TRUE COPY OF THE ORDER PASSED IN PRELIMINARY ISSUE DATED 05.11.2021 BY THE ADDITIONAL MUNSIFF-II COURT, THIRUVANANTHAPURAM.