OP(C).No.3019 of 2014 (and connected Transfer Petitions Tr.P(C).Nos.412/2017, 415/2017, 417/2017, 420/2017, 421/2017)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 7TH DAY OF FEBRUARY 2018 / 18TH MAGHA, 1939** **OP(C).No. 3019 of 2014** **I.A.NO.1708/2014 IN OS NO.393/2012 of MUNSIFF'S COURT,ALUVA** **----------** ## **PETITIONER(S)** **-------------** **1 BABU, SON OF POULOSE @ PAUL,AGED 38 YEARS, PADAN (PUTHUSSERY) HOUSE, EZHATTUMUGHAM P.O., PIN - 683 577, EZHATTUMUGHAM KARA, KARUKUTTI VILLAGE, ALUVA TALUK.** **2 ANNAKUTTY,** **W/O.ANTHONY,AGED 78 YEARS, PADAN (PUTHUSSERY) HOUSE, EZHATTUMUGHAM P.O., PIN 683 577, EZHATTUMUGHAM KARA, KARUKUTTI VILLAGE,ALUVA TALUK.** **BY ADVS.SRI.T.P.SAJAN** **SRI.M.MOHAMED NAVAZ SRI.P.SANTHOSH KUMAR (TR)** ## **RESPONDENT(S):** **--------------** **1. P.C.JOSEPH @ THAMPI,** - **S/O.CHERIYA, AGED ABOUT 77 YEARS,PUTHUSSERY HOUSE, MUKKANNOOR P.O PIN - 683 577 MUKKANNOOR KARA, MUKKANNOOR VILLAGE** **2. P.C.VARGHESE @ KUNJUMON,** - **S/O.CHERIYA,AGED ABOUT 63 YEARS, PUTHUSSERY HOUSE, MUKKANNOOR P.O. PIN - 683 577 MUKKANNOOR KARA, MUKKANNOOR VILLAGE.** **3. P.C.THOMAS,** - **S/O.CHERIYA,AGED ABOUT 63 YEARS, PUTHUSSERY HOUSE, MUKKANNOOR P.O PIN - 683 577 ,MUKKANNOOR KARA, MUKKANNOOR VILLAGE.** **4. P.C.PAVIANOSE, C/O.BETSY PAVIANOSE, AGED ABOUT 65 YEARS,PUTHUSSERY HOUSE, MUKKANNOOR P.O., PIN - 683577 MUKKANNOOR KARA, MUKKANNOOR VILLAGE.** **TS** **OP(C).No. 3019 of 2014** **5. P.C.ANDREWS,** **S/O.CHERIYA,AGED ABOUT 80 YEARS, PUTHUSSERY HOUSE, ARASALY P.O. PIN - 577414 BENAVALLY SHIMOGA DISTRICT, KARNATAKA.** **6. THE REVENUE DIVISIONAL OFFICER, FORT KOCHI** **O/O.THE REVENUE DIVISIONAL OFFICER, FORT KOCHI. PIN - 682 001.** **R1 TO R3 BY ADV. SRI.V.G.ARUN** **SMT.INDULEKHA JOSEPH** **SRI.NEERAJ NARAYAN** **R4 BY ADV. SRI.A.BALAGOPALAN** **R5 BY ADV. SRI.LUIZ GODWIN D'COUTH** **R6 BY SENIOR GOVERNMENT PLEADER SRI.M.I.JOHNSON** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07-02-2018, ALONG WITH TR.P(C)NO.412/2017 AND CONNECTED CASES,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** **OP(C).No. 3019 of 2014 (O)** ## **-------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------** **EXT.P-1: TRUE COPY OF THE PLAINT IN O.S.393/12 PENDING BEFORE THE MUNSIFF'S COURT, ALUVA.** **EXT.P-2: TRUE COPY OF I.A. NO.1708/14 IN O.S. 393/12 OF THE MUNSIFF'S COURT, ALUVA.** **EXT.P-3: TRUE COPY OF THE COUNTER AFFIDAVIT IN I.A.NO.1708/14 IN O.S.393/12 OF THE MUNSIFF'S COURT, ALUVA.** **EXT.P-4: CERTIFIED COPY OF THE ORDER DATED 29.10.2014 IN I.A.NO.1708/14 IN O.S.393/12** **EXT.P-5: TRUE COPY OF THE DECISION REPORTED IN 2004(4) SCC 215.** ## **RESPONDENT(S)' EXHIBITS - NIL** **------------------------------** **/TRUE COPY/** **PS TO JUDGE** **TS 08/03/2018** **(C.R)** ## **ALEXANDER THOMAS, J.** -------------------------------------------------------------O.P(C) No.3019 of 2014 & Tr. P(C) . Nos. 412, 415, 417, 420 and 421 of 2017 --------------------------------------------------------------Dated this the 7[th] day of February, 2018 Since most of the issues in these petitions are interconnected these matters are disposed of on the basis of this judgment and common order. The matter in OP(C).No.3019 of 2014 would be taken up initially. ## - J U D G M E N T: ## OP(C).No.3019 of 2014 2. The petitioners herein are the plaintiffs in O.S. 393 of 2012 on the file of Munsiff's Court, Aluva. Earlier, the first petitioner/plaintiff had filed O.S. No **.** 279/2011 before the Munsiff Court, Aluva against the same defendants for an injunction to restrain from selling the property, which is allegedly bequeathed to the first petitioner/first plaintiff by late Paulose @ Paul. In the said suit, the defendants are the brothers of late Paulose @ Paul, who died unmarried. The contention raised by the first petitioner/ first plaintiff is to the effect that he is the illegitimate son of late Paulose born through the second petitioner/second plaintiff. It is later that the plaintiffs have filed the present suit, O.S. 393 of 2012 on the file of the Munsiff Court, Aluva seeking a declaration that the above said late Paulose (son of Cheria), is the biological father of first plaintiff born through the second plaintiff. It appears that late Paulose was unmarried and he had O.P(C).3019/14, etc. - : 2 :- siblings. Ext. P1 is the copy of the plaint in O.S.393 of 2012. Later, the plaintiffs had filed Ext.P2 I.A. No.1708 of 2014 in O.S. No.393 of 2012 praying for a direction to the trial court so as to direct the 5[th] respondent/5[th] defendant to supply blood for DNA Test through an expert scientific agency. There are five party defendants in O.S. No.393 of 2012. Defendants 1 to 5 are the five siblings of late Paulose. The 6[th] defendant therein is the Revenue Divisional Officer concerned. Defendants 1 and 2 filed objection to the prayer in Ext.P2 I.A. The trial court concerned (Munsiff Court Aluva), as per the impugned Ext.P4 order dated 29.10.2014 rejected the said prayer in Ext.P2.I.A. No.1708 of 2014 in O.S. No.393 of 2012. The impugned Ext.P4 order reads as follows: _“Heard both sides. The suit is for a declaration that the 1[st] plaintiff is the biological son of Late Paulose @ Paul. The person whose blood sample is directed to be given has expressed his consent for the same. If that be so, the question to be considered is whether any prejudice would be caused to other respondents any prejudice would be caused to other respondents in pressing such an order. Be that as it may the very maintainability of the suit itself has become doubtful in view of Devadas v. Gopalakrishnan 2014 (4) KLT 201. In the circumstances the present request of the petitioner cannot be allowed and hence the petition is dismissed.”_ It is this order at Ext.P4 that is under challenge in this Original Petition (Civil). 3. Heard Sri.T.P.Sajan, learned counsel appearing for the petitioners, Sri.V.G. Arun, learned counsel appearing for respondents 1 to 4, Sri.Louiz Godwin D'Couth, learned counsel appearing for the fifth respondent and Sri.M.I.Johnson, learned Senior Govt. Pleader appearing for the sixth respondent, RDO, Fort Kochi. 4. In the impugned Ext.P4 order, the trial court has taken the O.P(C).3019/14, etc. - : 3 :- view that, in the light of the dictum laid down by this Court in the judgment in **Devadas v. Gopalakrishnan** reported in **2014 (4) KLT 201** , the very maintainability of the action of the civil Court is doubtful. In these circumstances, the request for direction to the 5[th] respondent to supply blood for conducting DNA test cannot be allowed and hence the petition was dismissed. It is relevant in this context to note that the fifth respondent had no objection in the grant of prayer in Ext.P4. The prayer in Ext.P4 was opposed only by respondents 1 and 2. It is also relevant to note that all the Advocates concerned appearing in these cases have made the submission that, the view taken by the trial court in Ext.P4 order that the suit is not maintainable in view of the dictum laid down by this Court in **Devadas's** case reported in 2014 (4) KLT 201, is legally wrong and untenable and that going by the dictum laid down by the Apex Court in **Renubala Moharana and Another v. Mina Mohanty and Others** reported in **(2004) 4 SCC 215** as well as that of the Division Bench ruling of this Court in **Bharat Kumar v. Selma Mini** reported in **2007 (1) KLT 945** , the Division Bench ruling of this Court in the judgment dated 2.7.2009 in Mat. Appeal. No.103 of 2003, the jurisdiction is not vested with the Family Court for adjudicating the issues and prayers in the present suit. That the jurisdiction is exclusively vested with the civil court concerned. Though the parties have agreed on that main point, as far as this suit is concerned, this Court is obliged to take a considered decision on that aspect of the matter. O.P(C).3019/14, etc. - : 4 :- ## 5. Sec. 7 of the Family Courts Act 1984 reads as follows : _“ Sec._ _**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 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) 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 also have and exercise--_ _(a) the jurisdiction exercised 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.”_ (emphasis supplied) ## 6. Section 8 of the Family Courts Act 1984 dealing with exclusion of jurisdiction and pending proceedings, reads as follows: _“Sec._ _**8. Exclusion of jurisdiction and pending proceedings** .- Where a Family Court has been established for any area,-_ O.P(C).3019/14, etc. - : 5 :- _(a) no District Court or any subordinate Civil Court referred to in subsection (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section;_ _(b) no Magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);_ _(c) every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of Section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974),-_ - _(i) which is pending immediately before the establishment of such Family Court before any District Court or subordinate Court referred to in that sub-section or, as the case may be, before any Magistrate under the said Code; and_ - _(ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court has been established,_ _shall stand transferred to such Family Court on the date on which it is established.”_ 7. The Apex Court, in the decision in **Renubala Moharana's** **case** supra has held, more particularly in paragraph 6 thereof, that under Section 7(1) read with clause (e) of the Explanation, a suit or proceedings for a declaration “ _as to the legitimacy of any person_ ” is within the jurisdiction of the Family Court. According to the appellants therein, the child was born on account of extramarital relationship between respondent No.1 therein and the deceased son of the appellants therein. Thus, even going by the case of the appellants therein, the child cannot obviously be treated as a legitimate child of the deceased son of the appellants and the first respondent therein. Hence it was held by the Apex Court that the question of status of the child in relation to the petition can be incidentally gone into by the Family Court if necessary while deciding the guardianship petition. But it was held that the Family Court O.P(C).3019/14, etc. - : 6 :- concerned and the High Court have rightly held that the declaratory relief as regards the illegitimacy of the child cannot be granted. It is pertinent to refer to paragraph 6 of the above said judgment in **Renubala Moharana and Another v. Mina Mohanty and Others** reported in ## **(2004) 4 SCC 215,** which reads as follows: _“6. The view taken by the High Court as regards the first prayer has been assailed before us. Under Section 7(1) read with clause (e) of the Explanation, a suit or proceeding for a declaration “as to the legitimacy of any person” is within the jurisdiction of the Family Court. According to the appellants, the child was born on account of extramarital relationship of respondent 1 with their son, the late Samuel Maharana. Accepting the case of the appellants, the child cannot obviously be treated as a legitimate child of Samuel and Mina Mohanty (R1). The question of status of the child in relation to the parties to the petition can be incidentally gone into by the Family Court if necessary while deciding the guardianship petition. That liberty has been granted to the Family Court. However, as rightly held by the Family Court and the High Court, the declaratory relief as regards the illegitimacy of the child cannot be granted. In effect, that is what the appellants want under prayer (a).”_ ## 8. A Division Bench of this Court in **Bharat Kumar v. Selma** **Mini** reported in **2007 (1) KLT 945 (DB)** has held in paragraph 4 thereof that the jurisdiction conferred on the Family Court is settlement of issues arising out of matrimonial causes and matrimonial cause is a cause relating to rights of marriage between husband and wife. Paternity and legitimacy are two different concepts. Paternity by itself may not, in all circumstances, be a matrimonial cause, as in the case therein and that paternity is the state or fact of being the father of a particular child. The legitimacy of a child is its right to be officially accepted as such. Admittedly the petitioner therein is not the husband of the first respondent therein and according to the 1[st] respondent therein, she had only extramarital relationship with the petitioner therein. The second O.P(C).3019/14, etc. - : 7 :- respondent therein is the husband of the first respondent therein and he did not have a case regarding legitimacy of the child. Therefore, going by the admitted facts of the case in **Bharat Kumar** 's case supra, the child was born in the extramarital relationship between the first respondent therein and the petitioner therein. Accordingly, the Division Bench held in **Bharat Kumar's case** supra that the Family Court gets the jurisdiction to go into the question of legitimacy of any person, only if such a question arises in a matrimonial cause. An investigation on the paternity of a person is required only when the legitimacy of a person is to be decided by the Family Court. The question arises only out of a matrimonial cause where there is a claim on matrimonial relationship out of which the said person is born. It may also arise in situations covered by explanation (g) to Section 7(1) which deals with a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor, as held by the Apex Court in **Renubala Moharana** 's case supra. The Division Bench, in **Bharat Kumar** 's case supra noted therein that it was held in **Renubala Moharana** 's case supra that the Family Court cannot entertain any proceedings for declaration as to the legitimacy of any person without any claim on marital relationship. In **Bharat Kumar** 's case, it was considered by the Division Bench that the petitioner therein before the Family Court, who was the first respondent in the petition before the High Court, does not have a case that there was marital relationship between the first respondent therein and the petitioner therein and admittedly the case O.P(C).3019/14, etc. - : 8 :- is one of extramarital relationship between them. Accordingly, the dispute is with regard to paternity of a child born in extramarital relationship cannot be the subject of the jurisdiction of the Family Court in view of the provisions contained in the Explanation appended to Section 7(1) of the Family Courts Act, 1984. It was also observed in **Bharat Kumar** 's case that the paternity of a child can be gone into as incidental to a dispute on the legitimacy arising only out of a claim on marital relationship between the parties and such a question may also incidentally arise in deciding a guardianship petition and that the fact situation in **Bharat Kumar** 's case did not have any such implications. It is in the light of these aspects that it was held in **Bharat Kumar** 's case supra that the issue regarding the declaration as to the legitimacy of a person without any claim on marital relationship, cannot be the subject matter of jurisdiction of Family Court under Section 7(1) of the Family Courts Act, 1984. Another Division Bench of this Court had also occasion to consider similar issues. A Division Bench of this Court in the judgment dated 2.7.2009 in the case between _**Laila v. Muhammedali**_ , in Matrimonial Appeal No.103 of 2013 had also occasion to consider the following issue as one of the many issues considered therein. The issue in particular that was considered by the Division Bench in _**Laila's case supra**_ was to the following effect: > “ _Does the prayer for declaration of illegitimacy of a child born during the subsistence of a valid marriage fall within the sweep of explanation (e) to Section 7(1) of the Family Courts Act?”_ That issue has been considered in paras 18 and 19 by the Division Bench O.P(C).3019/14, etc. - : 9 :- judgment of this Court in _**Laila's case**_ supra. It will be profitable to refer paras 18 and 19 of the Division Bench decision of this Court dated 2.7.2009 in _**Laila's case**_ (Matrimonial Appeal No.103/2003), which read as follows: _'18. The learned counsel for the appellants has then placed reliance on the decision of a Division Bench of this Court in_ _**Bharat Kumar v.Selma Mini and Another (2007 (1) KLT 945).** In that decision, the earlier decision of the Supreme Court in_ _**Renubala** was considered and the dictum was accepted. In paragraph 4 of Bharat Kumar's case, the dictum of the Supreme Court is understood by the Division Bench as follows:_ _“It may also arise in situations covered by explanation (g) of S.7(1), as held by the Supreme Court in Renubala Moharana v.Mina Mohanty, 2004 KHC 778 : 2004(2) KLT SN 42: AIR 2004 SC 3500 : 2004 (110) DLT 521 : 2004(2) CHN 180 : 2004 (18) AIC 207(SC) : 2004 (4) SCC 215. It was also held by the Supreme Court in the said decision that the Family Court cannot entertain any proceedings for declaration as to the legitimacy of any person without any claim on marital relationship. In the case before us the petitioner before the Family Court, the first respondent herein, does not have a case of marital relationship with the petitioner herein. The case admittedly is of extra marital relationship. The dispute is with regard to the paternity of a child born in the said extra marital relationship. That is not a matter falling within the jurisdiction of the Family Court. Paternity of a child can be gone into as incidental to a dispute on the legitimacy arising only out of a claim on marital relationship between the parties. Such a question also may incidentally arise in deciding a guardianship petition. No such situation arises in this case.”_ _19. We are persuaded to agree with the learned counsel for the respondent that_ _**Bharat Kumar** also supports his contention only._ _**Renubala** was a case where parents of Samuel, a deceased man, inter alia, sought a declaration that the child born to respondents 1 and 2 (spouses) during their valid matrimony is not the child of the second respondent/husband, but was that of Samuel, with whom the first respondent wife had alleged illicit extra marital relationship. Similarly, in Bharat Kumar's case also the woman and the child had sued for a declaration that though the marital tie with the second respondent subsisted, the first respondent in that case who had illicit relationship with the woman during her valid matrimony with the 2[nd] respondent was the father of the child. What is crucial to note is that a declaration of legitimacy can be granted only when there is admitted matrimonial relationship. Where matrimonial relationship is not there between the contestants, the dispute can be only about paternity and not legitimacy. Section 7(1)(e) of the Family Courts Act does not cover a dispute regarding paternity by itself. It covers only a dispute regarding legitimacy of a child born. It is in that context that both the cases_ _**- Renubala** and_ _**Bharat Kumar** , took the view that it is essential that there must be a matrimonial relationship to attract explanation (e) to Section 7(1). It will be interesting to note the very question framed for consideration in Bharat Kumar's case in paragraph 1, which reads as follows:_ _“ Whether paternity of the child is an issue to be considered by the Family Court under S.7(1)(e) of the Family Court Act, 1984, without a matrimonial cause, is the question to be considered in this case.”_ _The dictum in_ _**Renubala** and_ _**Bharat Kumar** properly understood,_ O.P(C).3019/14, etc. - : 10 :- _according to us is only that a mere dispute about paternity where there is admittedly no matrimony between the mother and the alleged father is not one that can be entertained under Section 7(1)(e). Existence of valid matrimony is sine qua non for jurisdiction to entertain a proceedings under Section 7(1)(e) of the Family Courts Act._ _When admittedly there is no matrimony, there can be no question of legitimacy and in such a situation no relief under Section 7(1)(e) can be granted. That and that alone, it appears to us, is the dictum laid down in the two decisions. At least, it is evident that the Division Bench in_ _**Bharat Kumar** understood the dictum in_ _**Renubala** thus. We are in total and complete agreement with the view taken by the Diviison Bench in_ _**Bharat Kumar** on the interpretation of the dictum in_ _**Renubala** .”_ ## 9. In _**Laila's case supra**_ , the Division Bench was considering a case wherein the husband asserted that the child born to the wife is not his as he had no access to the wife during the relevant time as he was abroad. The wife contested the matter by asserting that the child is born in the wedlock with the husband and not otherwise. The husband had filed the Original Petition before the Family Court for declaration regarding the legitimacy of the child, etc. In that case, admittedly, the main parties in the lis had the case that the parties were the married spouses. In the light of those factual aspects, the Division Bench held that the Family Court has jurisdiction to entertain such a claim. This Court would also observe that going by the facts of that case, the jurisdiction of the Family Court was justified, in view of the provisions contained in Clause (d) of the Explanation under Sec.7(1) of the Family Court's Act, which reads as follows: _“_ _**7. Jurisdiction.--** (1) Subject to the other provisions of this Act, a Family Court shall-Explanation:-....._ _(a) xxx_ _(b) xxx_ _(c) xxx_ _(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship”_ O.P(C).3019/14, etc. - : 11 :- 10. Obviously, the common ground between the contesting parties in _**Lailas's case**_ supra to the lis is that they were married and therefore the cause of action to the said Original Petition before the Family Court was certainly arising out of the circumstances, which arose out of the matrimonial relationship between the parties. 11. Now coming to the facts of this case, none of the parties in the suit has a case that the 1[st] plaintiff (Sri.Babu) is the son of late Poulose born through a lawful wedlock. The specific allegation of the plaintiffs is that the 1[st] plaintiff is the illegitimate son of late Poulose born through the illicit relationship with the 2[nd] plaintiff (who is the mother of the plaintiff). Therefore, the issue regarding the declaration that the 1[st] plaintiff is the biological son of late Poulose born in the alleged illicit relationship with the 2[nd] plaintiff, etc. will not come within the broad scope and ambit of clause (e) or clause (d) or any other clauses of the explanation appended to Sec. 7(1) of the Family Court's Act. Going by the legal principles enunciated by the Apex Court and by the Division Bench in the aforesaid decisions, the view taken by the trial court in the impugned Ext.P-4 order is plainly untenable and legally wrong. The trial court has also placed reliance on the judgment of a learned Single Judge of this Court in _**Devadas v. Gopalakrishnan,**_ reported in 2014(4) KLT 201. A reading of the said judgment in _**Devadas' case**_ supra, would clearly disclose that the plaint averments therein were to the effect that the 1[st] defendant had legally married the 2[nd] defendant on 30.12.1972 and the plaintiff was born in that O.P(C).3019/14, etc. - : 12 :- wedlock on 25.1.1977 and that the alleged marriage of the 1[st] defendant with the 2[nd] defendant and the birth of the plaintiff in the wedlock is disputed by the 1[st] defendant. Therefore, it was held by this Court that one of the cardinal issues that arose for consideration in the suit is as to the paternity of the plaintiff and the question as to whether the plaintiff is the legitimate or illegitimate son of the 1[st] defendant is undoubtedly incidental in question. But the fact of the matter is that going by the plaint averments, the 1[st] defendant had legally married the 2[nd] defendant and the plaintiff was born in the wedlock of the said couple. Therefore, going by the plaint averments in that case, the plaintiff (child) was born in the lawful wedlock between the 1[st] defendant and the 2[nd] defendant. So undoubtedly the jurisdiction to try the case was exclusively with the Family Court in view of Clause (d) of the Explanation to Sec. 7(1) of the Family Courts Act. Therefore, the legal principles laid down by this Court in the _**Devadas' case**_ supra reported in 2014 (4) KLT 201, have no application to the facts of the instant case. In view of these reasons, the impugned Ext.P-4 order deserves to be interdicted. Accordingly, it is ordered that the impugned order at Ext.P-4 will stand set aside. 12. It is further ordered that Ext.P-2 I.A.No. 1708/2014 in O.S.No. 393/2012 will stand restored to the file of the trial court concerned. In the orders in the 5 aforementioned Transfer Petitions, this Court has ordered transfer of the present suit, O.S.No. 393/2012 and connected suits on the file of Munsiff's to the Court of Addl. District Judge, North Paravoor, where O.P(C).3019/14, etc. - : 13 :- the Testamentary Case, T.C.No.120/2014 is pending. So the orders on the present Ext.P-2 I.A.No.1708/2014 in O.S.No. 393/2012 will have to be passed afresh by the said transferee court, viz. Court of Addl. District Judge, North Paravoor. The said transferee court will pass orders afresh on that I.A. after haring all parties concerned and after taking note of the fact that the 5[th] respondent has no objection to the said prayer in that I.A. as well as the directions issued by this Court in 2014(4) KLT 201, paras 2 and 3, which read as follows: ' _2. The plaintiff had made a motion for a DNA Test to be conducted on the first defendant during the pendency of this Original Petition on the premise that he was terminally ill. This Court passed an interim order in this Original Petition on 13.8.2014 to the following effect:_ _“Urgent notice by special messenger to second respondent. The messenger is empowered to serve notice by affixture also. Part heard. Post on 21.08.2014 as the first item in the 300 list._ _The question pertains to the paternity of the first respondent who claims to be the son of the petitioner. The first respondent contends that the petitioner is terminally ill and that a DNA Test has to be conducted soon. Reliance is placed on Narayan Dutt Tiwari v. Rohit Shekhar and Another ((2012) 12 SCC 554) in this regard._ _The Head of the Elite Mission Hospital wherein the petitioner is a patient shall take his sample blood. The same shall be forwarded to the Rajiv Gandhi Centre for Bio Technology, Ministry of Science and Technology, Govt. of India, Poojapura, Thiruvananthapuram. The first respondent is permitted to produce a copy of this order before the hospital for necessary steps._ _The first respondent shall pay the requisite fee for having the DNA Test conducted by the Rajiv Gandhi Centre for Bio Technology. The Head of the hospital shall forward the sample blood to the Rajiv Gandhi Centre for Bio Technology forthwith.”_ _3. Rajiv Gandhi Centre for Bio Technology has now filed a report dated 26.8.2014 concluding as follows:_ _“The DNA test performed on the exhibits provided is sufficient to conclude that the source of exhibit C (Devadas) is the biological father of the source of exhibit B (P.D. Gopalakrishnan). The source of exhibit A (Jaya @ Elsy) is the biological mother of the source of exhibit B (P.D. Gopalakrishnan).”_ _The acceptability or otherwise of the report above has to be considered by the Family Court only after examining the author of the report. The DNA Test on the first defendant was warranted in the midst of the Original Petition only because it was reported that he was terminally ill. It now transpires that the_ - : 14 :- O.P(C).3019/14, etc. _first defendant died on 22.8.2014 soon after his sample blood was taken for DNA Test. Petitioners 2 and 3 seek impleadment in this Original Petition as widow and son of the deceased first petitioner (first defendant). Their impleadment is allowed leaving open the question as to who amongst the second petitioner and the second defendant is the legally wedded wife. All these are matters to be considered by the Family Court after framing appropriate issues in that regard. The Registry shall forward the DNA report dated 26.8.2014 to the Court of the Munsiff of North Paravur where O.S.No.52/2008 is hitherto pending.'_ Orders as directed above, should be passed without much delay, preferably within one month from the date of appearance of the parties, consequent to the transfer of the suit. If there is any unforeseen delay in that regard, then the District Court shall ensure that blood sample of the 5[th] respondent is collected and forwarded to the Rajeev Gandhi Centre for Biotechnology, Ministry of Science & Technology, Govt. of India, Thiruvananthapuram, for its proper keeping, until orders are pass on that I.A., as the 5[th] respondent is aged more than 80 years. With these observations and directions, the above Original Petition (Civil) will stand finally disposed of. ## - COMMON ORDER: ## Tr.P(C).Nos.412, 415, 417, 420 & 421 of 2017: 13. The parties are referred with reference to the status in the transfer petitions. ## 14. The prayer in Tr.P(C).No. 412/2017 is as follows: _“.....to transfer O.S.No.393/2012, on the file of the Munsiff Court, Aluva, to Additional District Court, North Paravoor where T.C.No.120/2014 is pending, in the interest of justice.”_ Tr.P(C).No. 412/2017 arises out of O.S.No.393/2012 on the file of the Munsiff's Court, Aluva. O.S.No.393/2012 has been filed by the 1[st] O.P(C).3019/14, etc. - : 15 :- respondent (Babu) along with the 2[nd] respondent (Annammakutty) against the petitioners and 3[rd] & 4[th] respondents (who are also the brother of the aforementioned late Poulose) for declaring that the 1[st] respondent (Babu) is the biological son of late Poulose. The three petitioners in Tr.P(C).No. 412/2012 are defendants 1 to 3 in O.S.No. 393/2012. It is pointed out that it is that case of the 1[st] plaintiff that late Poulose had executed a will bequeathing one of his properties to the 1[st] plaintiff. On this basis, the 1[st] plaintiff in the abovesaid original suit has also filed a Testamentary Case T.C.No.120/2014 before the Court of Addl. District Court, North Paravoor, seeking issuance of letter of administration in respect of the testamentary dispossession. The petitioners in the transfer petition would contend that the matters in relation to the Testamentary Case, T.C.No.120/2014 now on the file of the Court of Addl. District Court, North Paravoor, are intrinsically connected to the matters in O.S.No. 393/2012. On this basis, they seek transfer of O.S.No. 393/2012 now on the file of the Munsiff's Court, Aluva, to the Court of the Addl. District Court, North Paravoor, before whom, T.C.No.120/2014 is pending. ## 15. The prayer in Tr.P(C).No. 415/2017 is as follows: _“..... to transfer O.S.No.492/2016, on the file of the Munsiff Court, Aluva, to Additional District Court, North Paravoor where T.C.No.120/2014 is pending, in the interest of justice.”_ Tr.P(C).No. 415/2017 arises out of O.S.No. 492/2016 on the file Munsiff's Court, Aluva. The said original suit, O.S.No. 492/2016 has been filed by the abovesaid 1[st] respondent (Babu) seeking partition and O.P(C).3019/14, etc. - : 16 :- separate possession over his alleged one-seven share of the ancestral property situated in Resurvey No.35/3/1 of Karakkutty village with an extent of 9.86 Ares. of land as against the respondents 3 to 11. The plaintiff in that suit would place reliance on the alleged will. Here also it is contended by the transfer petitioners that the matters in the said suit are also integrally connected to the matters in the abovesaid testamentary case pending before the abovesaid District Court concerned and that the suit may be transferred as mentioned herein above. 16. The prayer in Tr.P(C).No. 417/2017 is as follows: _“.....to transfer O.S.No.279/2011, on the file of the Munsiff Court, Aluva, to Additional District Court, North Paravoor where T.C.No.120/2014 is pending, in the interest of justice.”_ Tr.P(C).No. 417/2017 arises out of O.S.No. 279/2014 on the file of the Munsiff's Court, Aluva. The said suit has also been filed by the abovesaid Sri.Babu, seeking fixation of boundary, mandatory and prohibitory injunction against the other legal heirs of late Poulose (1[st] , 2[nd] and 3[rd] petitioners in the Tr.P(C). and 2[nd] , 3[rd] and 4[th] respondents in that Tr.P(C).] with respect to the self acquired property of late Poulose situated in resurvey No.270/20 with the extent 6.75 ares along with the residential building situated therein. The 1[st] respondent has filed the said O.S.No. 279/2011 on the premise that he is the illegitimate son of late Poulose and legatee of Poulose and that he has claimed testimatory succession on the strength of the will deed alleged to have been executed by Poulose. Here also the transfer petitioners would place the same contention that the O.P(C).3019/14, etc. - : 17 :- matters are integrally connected which warrants transfer of the suit to the abovesaid District Court concerned where the testamentary case is pending. ## 17. The prayer in Tr.P(C).No. 420/2017 is as follows: _“..... to transfer O.S.No.781/2014, on the file of the Munsiff Court, Aluva, to Additional District Court, North Paravoor where T.C.No.120/2014 is pending, in the interest of justice.”_ Tr.P(C).No. 420/2017 arises out of O.S.No. 781/2014 on the file of the Munsiff's Court, Aluva. The said original suit, O.S.No. 781/2014 has been filed by the aforesaid three petitioners and the 4[th] respondent in Tr.P(C).No. 420/2017 seeking restoration of possession in respect of the subject matter the property in relation to O.S.No. 279/2011 and O.S.No. 672/2014. The plaintiffs therein would deny the allegation made by the 1[st] respondent (Babu) that he is the legitimate son of the abovesaid Poulose. They also deny the genuineness of the will. Here also the transfer petitioners would contend that the matters in O.S.No.781/2014 are inextricably linked and connected to the matters in the above testamentary case and that the suit is to be transferred to the abovesaid District Court concerned where, the testamentary case in relation to the letter of administration is pending. ## 18. The prayer in Tr.P(C).No. 421/2017 is as follows: _“.....to transfer O.S.No.672/2014, on the file of the Munsiff Court, Aluva, to Additional District Court, North Paravoor where T.C.No.120/2014 is pending, in the interest of justice.”_ Tr.P(C).No.421/2017 arises out of O.S.No.672/2104. The said O.S. O.P(C).3019/14, etc. - : 18 :- has been filed by the 1[st] respondent in that Tr.P(C). (the abovesaid Babu). The case of the 1[st] respondent in the Transfer Petition (plaintiff in the suit) is that the defendants therein were attempting to trespass into the plaint schedule property which was in the alleged possession of the plaintiff Sri. Babu and the plaintiff seeks injunction against the defendants [petitioners and respondents 2 and 4 in the Tr.P(C).]. The transfer petitioners would raise the same contention regarding the connection between the matters and would seek transfer of the suit to the abovesaid District Court concerned, which is dealing with the testamentary case. 19. Heard Sri.T.P.Sajan, who is appearing for the abovesaid Sri.Babu and his mother, Smt.Annammakutty, Sri.V.G.Arun, learned counsel appearing for the petitioners in all the Transfer Petitions, Sri.Dileep D.Bhat, (who appears for R-5, R-6 to R-10 in Tr.P(C).No. 415/2017, respondent No.4 in Tr.P(C).Nos. 417/2017, 420/2017 & 421/2017), and Sri.Abilash Tomas, learned counsel appearing for R-3 in Tr.P(C).No. 412/2017, R-2 in Tr.P(C).No. 415/2017, 417, 420 and 421 of 2017) and Sri.Louiz Godwin D'Couth, learned counsel appearing for R-4 in Tr.P(C).No.412/2017, R-3 in Tr.P(C).Nos. 415, 417, 420 and 421 of 2017). 20. All the Advocates concerned appearing for the respective parties would submit that going by the nature of the plaint averments as well as the matters in issue, it is only just and proper that all these original suits, which are the subject matter of these transfer petitions, be transferred to the Court of Addl. District Judge, North Paravoor, who is O.P(C).3019/14, etc. - : 19 :- dealing with testamentary case, T.C.No.120/2014. Going by the plaint averments in the original suits as well as the matters sought to be raised in testamentary case, this Court is also of the considered view that in the interest of justice would be advanced if all the abovesaid original suits, which are the subject matter of the above transfer petitions, are transferred to the Court Addl. District Judge, North Paravoor, before whom Testamentary Case, T.C.No.120/2014 is pending so as to avoid conflicting decisions by different fora. Accordingly, it is ordered in the interest of justice that O.S.Nos. 393/2012, 492/2016, 279/2011, 781/2014 and O.S.No. 672/2014, which are now on the file of the Munsiff's Court, Aluva will stand transferred to the file of the Court of the Addl. District Judge, North Paravoor, before whom Testamentary Case, T.C.No.120/2014 is pending. The parties will produce certified copies of this judgment before the Munsiff's Court, Aluva, upon which said court will transmit the entire case papers and case records in relation to the five aforementioned original suits to the Court of the Addl. District Judge, North Paravoor. On receipt of the case papers, the Court of the Addl. District Judge, North Paravoor, will issue notices to all the parties concerned and then deal with the matter in accordance with law. 21. The parties would also point out that specific directions may be issued by this Court to ensure that all the suits are jointly tried with by the transferee court along with Testamentary Case, T.C.No.120/2014. 22. The Apex Court in the decision in _**Prem Lala Nahata &**_ O.P(C).3019/14, etc. - : 20 :- ## _**Anr. v. Chandi Prasad Sikaria**_ , reported in 2007 (2) SCC 551 = AIR 2007 SC 1247 = 2007 KHC 3076 has held in paras 18 and 19 thereof, as follows (see SCC report): _**“18.** It cannot be disputed that the court has power to consolidate suits in appropriate cases. Consolidation is a process by which two or more causes or matters are by order of the court combined or united and treated as one cause or matter. The main purpose of consolidation is therefore to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. The jurisdiction to consolidate arises where there are two or more matters or causes pending in the court and it appears to the court that some common question of law or fact arises in both or all the suits or that the rights to relief claimed in the suits are in respect of or arise out of the same transaction or series of transactions; or that for some other reason it is desirable to make an order consolidating the suits. (See Halsbury’s Laws of England, Vol. 37, para 69.) If there is power in the court to consolidate different suits on the basis that it should be desirable to make an order consolidating them or on the basis that some common questions of law or fact arise for decision in them, it cannot certainly be postulated that the trying of a suit defective for misjoinder of parties or causes of action is something that is barred by law. The power to consolidate recognised in the court obviously gives rise to the position that mere misjoinder of parties or causes of action is not something that creates an obstruction even at the threshold for the entertaining of the suit._ _**19.** It is recognised that the court has wide discretionary power to control the conduct of proceedings where there has been a joinder of causes of action or of parties which may embarrass or delay the trial or is otherwise inconvenient. In that situation, the court may exercise the power either by ordering separate trials of the claims in respect of two or more causes of action included in the same action or by confining the action to some of the causes of action and excluding the others or by ordering the plaintiff or plaintiffs to elect which cause of action is to be proceeded with or which plaintiff should proceed and which should not or by making such other order as may be expedient. (See Halsbury’s Laws of England, Vol. 37, para 73.) Surely, when the matter rests with the discretion of the court, it could not be postulated that a suit suffering from such a defect is something that is barred by law. After all, it is the convenience of the trial that is relevant and as the Privy Council has observed in the decision noted earlier, the defendant may not even have an absolute right to contend that such a suit should not be proceeded with.”_ 23. The Apex Court has also held in the judgment in _**Mahalaxmi**_ _**Co-operative Housing Society Ltd. & Ors. v. Ashabhai Atmaram**_ _**Patal through LRs**_ , reported in (2013) 4 SCC 404 = AIR 2013 SC 961 = 2013 KHC 4166 in paras 45 and 46 as follows: _**“45.** We are also not much impressed by the argument of the learned Senior Counsel appearing for the respondent that the trial court has committed an error in not_ - : 21 :- O.P(C).3019/14, etc. _consolidating the various suits including Civil Suits Nos. 292 of 1993 and 681 of 1992 to be tried together as ordered by the District Court in its order dated 29-8-2006 in Civil Misc. Application No. 16 of 2005. Section 24 CPC only provides for transfer of any suit from one court to another. The court has not passed an order of consolidating all the suits. There is no specific provision in CPC for consolidation of suits. Such a power has to be exercised only under Section 151 CPC. The purpose of consolidation of suits is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. Consolidation of suits is ordered for meeting the ends of justice as it saves the parties from multiplicity of proceedings, delay and expenses and the parties are relieved of the need of adducing the same or similar documentary and oral evidence twice over in the two suits at two different trials. Reference may be made to the judgment of this Court in Prem Lala Nahata v. Chandi Prasad Sikaria [2007 (2) SCC 551]._ _**46.** The transfer of the suits from one court to another to be tried together will not take away the right of the parties to invoke Order 23 Rule 3 and there is also no prohibition under Order 23 Rule 3 or Section 24 CPC to record a compromise in one suit. Suits always retain their independent identity and even after an order of consolidation, the court is not powerless to dispose of any suit independently once the ingredients of Order 23 Rule 3 have been satisfied.”_ 24. The Apex Court in the judgment in _**Nirmala Devi v. Arun Kumar Gupta,**_ reported in (2005) 12 SCC 505 and _**Balbir Singh Wasu v. Lakhbir Singh,**_ reported in (2005) 12 SCC 503, has held that since the decision in the probate proceedings pending before the trial court concerned are having direct impact on the related original suits, it was ordered that the suit be transferred to the District Court concerned which was dealing with the probate application in order to dispose the suit along with the probate application. 25. Having regard to the facts and circumstances of this case, this Court is of the considered view that it will be better in the interest of justice that the issue as to whether or not all the matters should be jointly tried, is to be primarily decided by the court which is dealing with the testamentary case. Accordingly, it is ordered that all or any of the parties will be at liberty to file appropriate application before the Addl. District Judge, North O.P(C).3019/14, etc. - : 22 :- Paravoor, for joint trial for consolidated disposal of the abovesaid original suits, along with the Testamentary Case, and the abovesaid legal principle laid down by the Apex Court should be borne in mind by the court below while taking a decision thereon. The decision in that regard may be taken within two to three weeks from the date of submission of any application that may be moved by any of the parties. With these observations and directions, the above Transfer Petitions (Civil) stand finally disposed of. sou Sd/sdk+ **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge