Jisha Justine and Adams Justine v. Dr. Justine MaliaKKal, Jhancy Antony Kattikaran & Anitha George

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 30TH DAY OF JANUARY 2017/10TH MAGHA, 1938** **OP (FC).No. 117 of 2016 (R) ---------------------------AGAINST THE ORDER IN OP 160/2015 of FAMILY COURT,ERNAKULAM** **PETITIONERS:** **------------** **1. JISHA JUSTINE AGED 36 YEARS, W/O.JUSTINE MALIAKKAL, MALIAKKAL BUNGALOW, KUZHUPPILLY,AYYAMPILLY P.O, ERNAKULAM 682501.** **2. ADAMS JUSTINE, AGED 15 YEARS, S/O.JUSTINE MALIAKKAL, MALIAKKAL BUNGALOW, KUZHUPPILLY,AYYAMPILLY P.O, ERNAKULAM 682501, REPRESENTED BY HIS MOTHER JISHA JUSTINE.** **BY ADVS.SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.ZAKEER HUSSAIN** **RESPONDENT(S):** **--------------** ## **1. DR. JUSTINE MALIAKKAL** **AGED 49 YEARS, S/O.LATE.DR.VARGHESE MALIAKKAL, HAVING PERMANENT ADDRESS AT MALIAKKAL BUNGALOW, KUZHUPPILLY,AYYAMPILLY P.O, ERNAKULAM 682501, NOW RESIDING AT A-13, PANORAMA RESIDENCY,KUMARANASAN ROAD, KADAVANATHARA,KOCHI 682 020.** **2. JHANCY ANTONY KATTIKKARAN, AGED 56 YEARS, D/O.LATE.DR.VARGHESE MALIEKKAL, KUZHUPPILLY,AYYAMPILLY P.O, NOW RESIDING AT A-13,PANORAMA RESIDENCY, KUMARANASAN ROAD, KADAVANTHARA,KOCHI 682 020.** **3. ANITHA GEORGE,** **AGED 51 YEARS, D/O.LATE.DR.VARGHESE MALIEKKAL, A-13,PANORAMA RESIDENCY, KUMARANASAN ROAD, KADAVANATHARA,KOCHI 682 020.** **R1 BY ADV. SMT.MEENA.A. R1 BY ADV. SRI.VINOD RAVINDRANATH R1 BY ADV. SRI.SAJU.S.A R1 BY ADV. SRI.K.C.KIRAN R1 BY ADV. SRI.M.DEVESH R1 BY ADV. SRI.VINAY MATHEW JOSEPH R2&3 BY ADV. SRI.K.N.CHANDRABABU** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 30-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP (FC).No. 117 of 2016 (R)** ## **----------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS** ## **----------------------** **EXT:P1 TRUE COPY OF THE INTERIM ORDER DATED 12.07.2007. EXT:P2 TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO.20792 OF 2007. EXT:P3 TRUE COPY OF THE JUDGMENT DATED 26.08.2011 IN O.P.NO.633 OF 2007. EXT:P4 TRUE COPY OF THE ORDER DATED 26.03.2012. EXT:P5 TRUE COPY OF THE O.P.NO.160 OF 2015 EXT:P6 TRUE COPY OF THE INTERIM ORDER. EXT:P7 TRUE COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT. EXT:P8 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS 2 AND 3. EXT:P9 TRUE COPY OF THE AMENDMENT PETITION. EXT:P10 TRUE COPY OF THE ARGUMENT NOTE. EXT:P11 TRUE COPY OF THE ORDER DATED 15.03.2016. RESPONDENTS' EXHIBITS:NIL -----------------------** ## **/TRUE COPY/** **P.S. TO JUDGE** **cl** ## **A.M. SHAFFIQUE & K. RAMAKRISHNAN, JJ.** ....................................... O.P.(FC).No.117 of 2016 ........................................ Dated this the 30[th] day of January, 2017. ## **JUDGMENT** ## **A.M. Shaffique, J:** This original petition is filed challenging Ext.P11 order dated 15.3.2016 in OP.No.160/2015 by which the Court below had come to the conclusion that the original petition filed by the petitioners herein was not maintainable under Section 7(1)(d) of the Family Courts Act. 2. The main contention urged by the petitioners is that the suit has been filed by the petitioners seeking for an injunction restraining the respondents from alienating the petition schedule property and for a decree of permanent prohibitory injunction restraining the respondents or their men or agents or anybody under them from dispossessing the petitioners from the petition schedule property. 3. The respondents raised a preliminary objection stating that the original petition is not maintainable under Section 7(1)(d) of the Family Courts Act. It is contended that, according to the respondents, the property originally belonged to Smt. Annie Varghese, the mother of the respondents, who executed a Will bequeathing her properties in favour of her daughters, respondents 2 and 3. The finding of the Court below was that on the death of the testator, Smt. Annie Varghese, the property devolved on O.P.(FC).No.117 of 2016 2 respondents 2 and 3 and therefore the petitioners cannot claim any right to proceed against the property of respondents 2 and 3 as the right claimed by the petitioners is not based on the marital relationship at all. The Family Court also relied upon various judgments of this Court to arrive at the aforesaid finding. The finding is impugned by the learned counsel for the petitioners interalia contending that the a joint Will was executed by the respondents' father and mother on 27.3.1996 bequeathing all their properties in favour of their son, the first respondent. His father died on 16.11.2007. Thereafter the mother has executed another Will as far as her properties are concerned on 7.2.2008. She died on 31.12.2013. It is contended that in an earlier proceedings in WPC.No.20792/2009 by an order dated 12.7.2007 this Court had restrained the first respondent herein from alienating any of his immovable properties without obtaining permission from Court. It is submitted that the mother had executed another Will to get over the aforesaid order as the intention of the testators, that is father and mother of the respondents, was to bequeath all the properties including the petition schedule property in favour of the first respondent. It was also observed that the petitioner shall be permitted to continue to stay in the family house of the first respondent. 4. The question regarding maintainability has to be considered 3 O.P.(FC).No.117 of 2016 based on the factual circumstances emanating in the original petition. In the original petition, the petitioners have sought for injunction interalia stating that the mother of the respondents have executed a Will in favour of respondents 2 and 3 and it is contended that after her death the property devolved upon the respondents. It is also alleged that after the death of the mother, the respondents colluded together and are taking hasty steps to alienate the property to strangers. The allegation raised is that the petitioners are residing in the petition schedule property which is their matrimonial home. On these allegations, an injunction is sought for restraining the respondents from alienating or encumbering the petition schedule property. 5. The fact remains that as on the date of filing the original petition, that is on 30.1.2015, the property did not belong to the first respondent. Though it was contended by the petitioners that the property belonged to the first respondent as well, the Will executed by the mother and which is produced in the case clearly indicate that prima facie the mother had the right to execute the Will, by virtue of which, the property had been bequeathed in the name of respondents 2 and 3. Therefore, as on the date of filing the original petition, prima facie the first respondent did not have any right. When the first respondent does not have any right, the petitioners cannot claim that the Family Court has jurisdiction O.P.(FC).No.117 of 2016 4 to entertain the suit. Section 7(1)(d) which is relied upon by the petitioners reads as under: _“A suit or proceeding for an order or injunction in circumstances arising out of a marital relationship”._ 6. The learned counsel appearing for the petitioners also placed reliance upon the judgment of this Court in _**Janaki Amma and Others v. Renuka Sadanandan and Others**_ [2016 (1) KHC 266 (DB)], wherein this Court had observed that to bring in the jurisdiction of Family Court, parties to the marriage need not necessary be there. What is significant is because of the lis whether the cause should have existed in respect of the marital relationship. 7. In the case on hand, the factual aspects would show that the property belonged to the first respondents' mother. Though she executed a Will along with the husband on 27.3.1996, after the death of her husband, she executed another Will and bequeathed the property in favour of her daughters, respondents 2 and 3. When the petitioners stake a claim by alleging that the first respondent has right over the property and prima facie he does not have any right, no claim can be raised against that property. As matters stand now, the property is in the name of respondents 2 and 3, against whom no claim can be made by the petitioners. The learned counsel appearing for the petitioners however paced reliance upon the interim orders passed by this Court in 5 O.P.(FC).No.117 of 2016 earlier proceedings. If at all the first petitioner can have a claim that she is entitled to reside in the matrimonial home despite the fact that her husband does not have any right, it is not a matter which can be adjudicated by the Family Court in a proceedings under section 7(1)(8) of the Family Courts Act. The petitioners can as well take appropriate steps before the proper forum rather than approaching the Family Court. Under such circumstances, we do not find any error committed by the Court below in dismissing the original petition directing a representation before proper forum. The original petition is therefore dismissed. The parties shall maintain status quo for a period of one month to enable the petitioners to take appropriate steps in accordance with law. ## **Sd/-** ## ## **Sd/-** ## **K. RAMAKRISHNAN, JUDGE.** cl