Mariyam Jasmine and Others v. Yousaf and Muhammed

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **MONDAY, THE 12TH DAY OF AUGUST 2013/21ST SRAVANA, 1935** **Tr.P(C).No. 302 of 2013 () ---------------------------** **OS 165/2011 of SUB COURT, MANJERI OP NO.1287/2011 OF FAMILY COURT, MALAPPURAM** **-----------------** **PETITIONER(S) :-** - **-----------------** **1. MARIYAM JASMINE, AGED 39, D/O.MAYIN, THATTAYIN HOUSE, ANAKAYAM AMSOM DESOM ANAKAYAM CHECK POST, NOW RESIDING AT ULLATIL HOUSE NILAMBUR TALUK, POOKOTTUMANA, MALAPPURAM DISTRICT.** **2. MUHAMMED AFZAL (MINOR), S/O.MUHAMMED** - **REPRESENTED BY GUARDIAN AND NEXT FRIEND MARIYAM JASMINE D/O.MAYIN, THATTAYIN HOUSE, ANAKAYAM AMSOM DESOM ANAKAYAM CHECK POST, NOW RESIDING AT ULLATIL HOUSE NILAMBUR TALUK, POOKOTTUMANA, MALAPURAM DISTRICT.** **3. AJMAL (MINOR), S/O.MUHAMMED** - **REPRESENTED BY GUARDIAN AND NEXT FRIEND MARIYAM JASMINE D/O.MAYIN, THATTAYIN HOUSE, ANAKAYAM AMSOM DESOM ANAKAYAM CHECK POST, NOW RESIDING AT ULLATIL HOUSE NILAMBUR TALUK, POOKOTTUMANA, MALAPURAM DISTRICT.** **4. ANSILA (MINOR), D/O.MUHAMMED REPRESENTED BY GUARDIAN AND NEXT FRIEND MARIYAM JASMINE D/O.MAYIN, THATTAYIN HOUSE, ANAKAYAM AMSOM DESOM ANAKAYAM CHECK POST, NOW RESIDING AT ULLATIL HOUSE NILAMBUR TALUK, POOKOTTUMANA, MALAPURAM DISTRICT.** **BY ADV. SRI.G.SREEKUMAR (CHELUR)** ## **RESPONDENT(S) :-** - **-------------------** **1. YOUSAF, S/O.YAKOOB, ENDHAN KUZHIYLAN ANAMARI VAZHIKADAVU AMSOM DESOM, NILAMBUR TALUK VAZHIKADAVU P.O., MALAPPURAM DISTRICT-679333.** **2. MUHAMMED, S/O.ULLATTIL IBRAHIM, ULLATIL HOUSE KUTIMUNDA CHUNGATHARA AMSOM DESOM, NILAMBUR TALUK POOKOTTUMANNA P.O., MALAPPURAM DISTRICT-679334.** **R2 BY ADV. SRI.P.VENUGOPAL (1086/92) R1 BY ADV. SRI.T.SIVADASAN** - **SRI.SAJU.S.A** - **SMT.MEENA.A.** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **jvt** ## **N.K.BALAKRISHNAN, J. -------------------------------Tr.P.C. No.302 of 2013 --------------------------------Dated this the 12[th] day of August 2013** ## **O R D E R** First petitioner in this transfer petition is the petitioner in O.P.No.1287/2011 pending before the Family Court, Malappuram. That is a petition filed seeking a decree for declaration of title of the first petitioner concerning the properties scheduled in that petition and also for a decree for cancellation of the deed allegedly conferring title on the first respondent. It is stated that the very same property is the suit property in O.S.No.165/2011 which is pending before the Sub Court, Manjeri. The defendants in O.P.No.1287/2011 are the respondents in this petition. The first respondent in this petition is the plaintiff in O.S.No.165/2011 mentioned above. The plaintiff therein sued for a declaration of title in respect of the suit property mentioned therein based on the sale deed executed by the 5[th] defendant. He also sought for recovery of possession on the strength of his title. This petition is filed by the Tr.P.C. No.302 of 2013 -: 2 :- petitioners seeking transfer of O.S.No.165/2011 from Sub Court, Manjeri to the Family Court, Malappuram to have a joint trial with O.P.No.1287/2011. The petitioner condents that the original petition and the suit are to be considered together since the issues involved are interconnected. 2. This petition for transfer is strongly opposed by the learned counsel for the respondents contending that similar petition filed by the petitioners herein was dismissed by this Court as evidenced by Annexure-III order in Tr.P. (C).No.207/2013 dated 17.6.2013. It was contended before this Court by the respondents herein, when Annexure-III was pending, that the first respondent is a bonafide purchaser for value from the 2[nd] respondent and that after the first respondent purchased the property, the petitioners trespassed into the property, forcibly broke open the lock and occupied the residential house situated therein and hence, O.S.No.165/2011 was filed for recovery of possession of the property and for other reliefs. 3. It was pointed out that the suit which was filed before the Sub Court, Manjeri was originally returned on Tr.P.C. No.302 of 2013 -: 3 :- the ground that it should be filed before the Family Court, Malappuram. As against that order, the plaintiff therein moved this Court by filing F.A.O.No.14/2013. Learned counsel for the respondents has produced a copy of the judgment in FAO No.14/2013. It was pointed out that the learned Sub Judge returned the plaint following the decision of the Division Bench in **Vasumathy N. and Another** v. **Valsan and Others** [2011 (3) KHC 573 (DB)]. There it was held by the learned Sub Judge that the substance of the litigation relates to disputes between the couple and children who are arrayed as defendants and accordingly, the plaint was ordered to be returned on the premise that the suit was barred before the civil court and the plaint has to be presented before the Family Court. That order was set aside by the Division Bench of this Court in FAO No.14/2013. 4. Learned counsel for the petitioners would submit that the judgment in FAO 14/2013 is not at all applicable to the facts of this case since that was rendered while the order returning the plaint was challenged and it was not a Tr.P.C. No.302 of 2013 -: 4 :- case where a request for transfer of the suit pending before the Sub Court, Manjeri to the Family Court, Malappuram was sought. It is further submitted by the learned counsel for the petitioners that in the earlier order (Annexure-III) the request was to transfer the suit to the Family Court, Malappuram for trial and disposal along with O.P.No.611/2011. O.P.No.611/2011 is for return of money and it has nothing to do with the title to the property which is the subject matter of the suit and O.P.No.1287/2011 and as such, Annexure-III order cannot preclude the court from transferring the suit O.S.No.165/2011 to the Family Court, Malappuram in view of the change of circumstance; namely, that O.P.No.1287/2011 was filed subsequently and that OP is pertaining to the immovable property which is the subject matter of the suit. Thus the learned counsel for the petitioner tries to distinguish that Annexure-III order should not be a fetter in allowing transfer of the suit to the Family Court, Malappuram. 5. The petitioners herein were the respondents in FAO No.14/2013. The decision in **Vasumathy's case** cited Tr.P.C. No.302 of 2013 -: 5 :- supra was distinguished on facts by the Division Bench in Annexure-III order and pointed out that in **Vasumathy's case** the sale deed involved in that litigation was executed after the husband had been served with notice in the MC proceedings in the Family Court and there was also a plea that the wife had a charge over the husband's property. In the judgment in FAO, the Division Bench noted that in **Vasumathy's case** the parties were Hindus and the provisions of the Hindu Marriage Act applied to them whereas the parties before the Division Bench are not so. It was also observed in FAO 14/2013 : “Not only that, the transfer of title by the fifth defendant to the plaintiff, as contended by the plaintiff, was before any litigation was filed in the Family Court as between the parties to the marriage between defendants 1 and 5. Not only that, the nature of disputes between them would be for consideration only at a later point of time and cannot be pre-judged; to push the plaintiff in this case, who is a stranger to the couple, to compel him to take remedial action before the Family Court. We see no jurisdiction in terms of the provisions of the Family Court Act, as regards the suit from which this appeal arises”. ## The decision in **Joseph** v. **Marium Thomas** [2006 (1) KLT Tr.P.C. No.302 of 2013 -: 6 :- 894] was also considered by the Division Bench which passed the judgment in FAO No.14/2013. In **Joseph's case** the Division Bench has considered the explanation to Sec.7 of the Family Court Act. It was also observed by this Court in FAO that where a total stranger, whose claim is of having purchased property from the husband, cannot be brought under Clause 7 of Sec.7 of the Family Court Act. Thus, the decision in **Vasumathy's case** was distinguished in FAO No.14/2013. 6. The learned counsel for the petitioners would submit that the object underlying Sec.10 C.P.C. is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue and that the object underlying Sec. 10 is to avoid two parallel trials on the same issue by two courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in a previously instituted suit. 7. It is also argued that the language of Sec. 10 suggest that it is referable to a suit instituted under the Tr.P.C. No.302 of 2013 -: 7 :- Civil Court and it cannot apply to proceedings of other nature instituted under any other statute and that the object of Sec. 10 is to prevent courts of concurrent jurisdiction simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. It is hence argued that the case pending before the family court is the original petition where as it is the suit filed by the respondent that is pending before the sub Court and so, it cannot be said that Sec. 10 C.P.C. can be applied. However, it is not necessary to delve deep into those matters since in this petition the scope or ambit of Sec. 10 C.P.C. is not required to be considered. The learned counsel for the respondents would submit that though what was filed before the Family Court is in the nature of an original petition, it is virtually a suit and so there may not be any difficulty to file a petition for stay of a suit under Sec. 10 of C.P.C. That is a matter to be decided by the Court before which such a petition is filed. That argument may not be acceptable. 8. So far as the parties to the petition are Tr.P.C. No.302 of 2013 -: 8 :- concerned, they are bound by the judgment in FAO 14/2013. A reading of the judgment would make it clear that the suit filed by the first respondent herein is to be tried before the Sub Court. OP 1287/2011 was filed only subsequent to the filing of the suit. It is also submitted by the learned counsel for the respondent that on going through O.P.1287/2011 and the earlier O.P. 611/2011, it can be seen that both are almost the same and at any rate, it can be seen that the O.P.1287/2011 was subsequently filed with ulterior motives. Those are also not matters which may be germane for consideration in this case. 9. So far as the respondent is concerned, he filed the suit for a declaration of his title and for recovery of possession and incidental reliefs. He has approached the Sub Court for necessary reliefs. Since the parties are bound by the judgment in F.A.O. 14/2013, I find that the request for transfer of the suit to the Family Court for a joint trial along with O.P.1287/2011 cannot be sustained. 10. In view of the fact that the transfer petition Annexure-III was already dismissed by this court and also in Tr.P.C. No.302 of 2013 -: 9 :- view of the observations made by the Division Bench in FAO 14/2013, I am not inclined to transfer the suit O.S. 265/2011 from the Sub Court, Manjeri to Family Court. Malappuram. Hence this petition is dismissed. **Sd/N.K.BALAKRISHNAN, JUDGE.** //True Copy// P.A. To Judge Jvt/Ani